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Gordon Smith has announced he is joining the faculty at the J. Reuben Clark Law School at Brigham
Young University. Best wishes from the LPB group to a good friend! We just want to know whether somebody in a place like the one Gordon showed over at Conglomerate can really keep his concentration on things like the business judgment rule and option backdating.

Yes, it's true. Law professor paparazzi snapped this picture of Alan Childress (left) and Jeff Lipshaw in front of the Rayne Memorial Church on St. Charles Street in New Orleans Thursday evening during the Knights of Chaos parade. Said the photographer, apparently a New Orleans native (she was running the Port-a-Potty
concession the church uses as an annual fundraiser - $1.00 a visit or a $10.00 all day pass [sic]), upon seeing the picture: "Y'all are SO white." Neither professor cared to comment.

The dizzying redrafts and non-final "final" versions of the new ABA Model Code for judges (our prior posts here and here) finally led to media scrutiny and criticism and the resignation of one committee member in protest to what he perceived to be a weakening of the code. But the final, really final action taken--approval of a draft retaining the "appearance of impropriety" standard as an enforceable rule within the actual text of new Rule 1.2--became something of a fizzle to the controversy, as the vote sounded fairly unanimous and the meeting and debate did not drag on (possibly aided by the bad recent publicity and the need to get out of Miami ahead of the weather). This as helpfully reported by the ABA Journal's on-line story Friday, "Judging Judicial Ethics: ABA House Retains Ban on 'Appearance of Impropriety.' "

The mid-year ABA meeting and the House of Delegate's vote in Miami seems to have settled the debate in the ABA drafting process once and for all. The states will have a new, substantially revised Code to consider implementing for their judiciaries.

It is very likely now that the debate is ended at the ABA level. There will be a uniform public presentation of this move (though the debate and PR problems may start anew at the state level as the new code is actively considered). As quoted by the story, one Miami attorney said this approval was a good result not because the New York Times says so but because it is the right thing to do. That is going to be the public face of this version, and understandably so (though the ABA's PR people will do well to not draw attention to editorializing and controversy before the final vote). That's the inevitable and maybe even best result. Certainly it is the most publicly defensible non-nuanced result.

The only problem is that this version of the judicial code was always supposed to be about clearly laying out black-letter rules for judges and telling them what is and is not acceptable behavior. "Appearance of impropriety" can serve as a catch-all critique even without the showing of any violation of any rule, and runs counter to the mission of clear, literalbenchmarks. It will generate more ethics complaints and disqualification motions not based on allegation of any actual impropriety. That effect may be tempered somewhat by the responsible enforcement of this code in the states, sensitive to the reality that it's easy to accuse a judge of "appearing" improprietous without having to identify any other rule violated or prove the underlying facts with clear and convincing evidence. I hope the states will keep that in mind and look for a real hook, an actual black-letter rule, when they take serious action against a judge.

I am reminded a little of the 1995 Aaron Sorkin/Rob Reiner film The American President, in which there's an exchange between the President (Michael Douglas) and, I think, his domestic policy adviser (Michael J. Fox). The adviser (well, maybe it was the press secretary) says that it is very important to not look like the White House is panicked. The President replies that, see, he thinks the important thing is to not actually be panicked.

To me, the language of "appearance of impropriety" is an important reminder that appearances do matter and should absolutely be the standard a judge imposes on himself or herself in every action taken and every interest pursued. I hope, though, that in imposing that standard as an external matter--as a punitive tool--the states are realistic and fair to the legitimate or even rule-approved actions of their judges.

What does a guy have to do to be disbarred around here? The Kansas Supreme Court indefinitely suspensed a lawyer who it had previously disciplined three times. The attorney also was admitted in Missouri, which had disciplined him eight times and ultimately also had imposed an indefinite suspension. The Kansas court found multiple ethical violations including misapppropriation, dishonesty, commingling and incompetence. The lawyer's trust account records were incomplete (he told Kansas that Missouri had some of them, which turned out not to be the case) and there were overdrafts. He paid his secretary out of the escrow account. The court considered the ABA standards for imposing lawyer discipline and found several aggravating factors.

This result does not greatly concern me if indefinite suspension is tantamount to disbarment. I understand that there is a stigma attached to the disbarment label that courts may wish to avoid. I am concerned if a record of ethical violations such as these would allow for reinstatement in the foreseeable future. (Mike Frisch)

Here's a story that any small firm lawyer who litigates can relate to. Lawyers A and B are opposing counsel in a domestic relations matter. B asks for and gets a continuance. A then seeks a continuance of the rescheduled date, citing either an oncoming illness or a conflicting obligation. B objects because of the expense in securing the testimony of an expert witness who was to testify on the fast-approaching new hearing date. The court denies the continuance and orders A to produce a doctor's note to support the claim of flu. There is confusion that suggests the possibility that A misled B as to whether the requested continuance was a fait accompli. In any event, A and the client do not appear and the judge places B under oath to recount the interaction with A. The judge orders A to personally pay B's fees.

The rest of the story is the nightmare part. A is the subject to a disciplinary action that ultimately results in a six month suspension by the Oregon Supreme Court. These cases happen when lawyers in A's situation are not straightforward with opposing counsel and the court. I did not see in the opinion whether the court ever got a doctor's note. (Mike Frisch)

The Maryland Court of Appeals recently disbarred an attorney who had been admitted in 2001 for neglect and failure to respond to the ethics complaint. The court viewed disbarment as the only appropriate sanction for an attorney who appears to have abandoned the practice of law and failed to participate in the disciplinary process.

The decision calls to mind a question asked by an Associate Judge of the District of Columbia Court of Appeals at an oral argument I attended last month. The question: would a lawyer be better off being prosecuted for an ethics violation in D.C. rather than Maryland? My answer: yes, indeedy. Maryland's relative toughness on ethics violations committed by lawyers stands in stark contrast to the D.C. Board's reflexively forgiving and lawyer-coddling attitude. If this attorney is also admitted in the District of Columbia, I'm taking bets that the D. C. Board will recommend lesser discipline as a reciprocal sanction. Any takers? (Mike Frisch)

Here's the issue. No matter which side of the issue on which you sit, it's undeniable that the combination of a so-called "poison pill" and staggered board make it very difficult to mount a successful hostile takeover. The poison pill makes it almost impossible to initiate, much less complete a tender offer (for reasons too complex to describe here) that does not have the approval of the target board. If the acquiror has the patience to wait until the next annual election of directors, it can mount a proxy contest. A proxy contest does not trigger a poison pill. But if the board is staggered, the acquiror would not be able to take control in a single election. Indeed, most M&A lawyers would tell you the staggered board is more important than the poison pill.

The standard defense of the companies, when shareholders submit their non-binding resolutions requesting that the board undertake the process of eliminating the staggered board, is that the staggering of the terms promotes stability and continuity within corporate management. (I made that argument myself, but I'm happy to say as I re-read it five years later, it was hardly the centerpiece of the defense.) As Professor Subramanian correctly observes, responsible shareholders don't oppose stability and continuity; what they oppose is the loss of the threat to incumbent management that they can be thrown out quickly if they fail to produce adequate returns to the shareholders. And there's the ironic rub. It's a crock that the form of the staggered board, as opposed to the substance of the customary practice of board nomination and renomination of its own members, is fundamentally responsible for the stability and continuity of the board (and I couldn't bring myself to say that even when I was defending it!) Boards will be stable and continuous as long as their elections, whether unitary or staggered, do not turn into political free-for-alls, which appears to be the goal of at least some portion of the shareholder activist community (primarily the union pension funds).

The Oregon Supreme Court suspended a lawyer for 30 days, overruling a trial panel decision that had found no ethical violation. The attorney had obtained a waiver of the right to a jury trial from his client without conducting any investigation of the client's situation or even reviewing the charges. The client later retained new counsel and entered a plea of guilty. He then filed an ethics complaint, alleging that his first lawyer had failed to adequately communicate with him. Noting that there is a distinction between errors of judgment that could lead to an actionable claim of negligence, on one hand, and incompetence on the other, the court found that the lawyer had failed to provide competent representation. (Mike Frisch)

The North Dakota Supreme Court rejected its Disciplinary Board's proposed 18 month suspension in a case involving misappropriation of entrusted funds. The Court's majority imposed disbarment. A dissent/concurrence by Chief Justice VandeWalle favored the recommended 18 month suspension, noting a concern about proportionality in disciplinary sanctions in light of a two-year suspension imposed in a case involving two instances of false testimony under oath, which had a serious and profound effect on a litigated case.

I agree with the Chief Justice in principle but not result. The sanction for the theft of client funds is entirely appropriate. The court (and other courts including my own "home Court"-- the D.C. Court of Appeals) should be treating serious acts of dishonesty the same way it deals with misappropriation. The ultimate sanction should be imposed for both forms of attorney misconduct. (Mike Frisch)

Well, actually, the work promises to be very substantive but not entirely Xerox-free: "Minimal grunt work! ...You won't make copies for anyone but yourself." The attorney-watchdog and law-reform group HALT has a revolving internship program, for college and grad students. It's in its Washington, D.C. headquarters on K Street. This link explains the advantages (including "Food!" and nearby Metro) and application process.

Just when you thought it was safe to go back in the water, more weather-related problems in New Orleans (my wife and son are digging out in Indianapolis).

The night before last, at about 3:00 a.m., a tornado touched down in Westwego, which is across the Mississippi River from New Orleans, then proceeded across the river to what is known as the Carrollton area of Uptown New Orleans. This is a mixed student-permanent neighborhood between the Tulane campus and the bend of
the Mississippi River as it proceeds north and west. (On the map at right, the Tulane campus is the dark spot in the middle; the tornado touched down just to the left where it says "East Carrollton.") There is also a commercial strip along Maple Street with bars, restaurants, and my regular Starbucks, which has the singular advantage of opening at 6:00 a.m.

Although there was a death and injuries in another affected neighborhood, as I understand it, there were no serious injuries in the Carrollton area. Two Tulane professors live right there, and had some fairly significant damage to their homes. When the power went out in the law
school for a while yesterday morning, I went to Oliver Houck's house to see if I could help, and saw at least one house down the street that had its entire second story taken off, and another with the entire front of the house gone. In true tornado fashion, however, two blocks to the east, there was no indication of a storm. (I have previously noted how Professor Houck has become one of my heroes.)

I never did find Oliver; apparently he and Lisa were clearing debris in the back of the house, where most of the damage was sustained. True, however, to his almost mythical persona, Ollie showed up later in the afternoon for the faculty meeting. Also typical of Ollie, as nobody in the neighborhood, amazingly, was hurt, he called it one of the most exhilarating, fun days of his life, the kind of thing we experience when communities and neighborhoods truly act as communities and neighborhoods, apropos of this post-Katrina thought.

The Indiana Supreme Court reprimanded a judge who failed to take action to implement an order from a higher court that reversed his order revoking the defendant's probation. As a result, the defendant was incarcerated for over a year and subject to parole supervision for an additional year thereafter. The Supreme Court expressed concern about the judge's initial lack of remorse and attempts to blame his staff for failing to act in the wake of the reversal. Eventually, the judge acknowledged misconduct and apologized. (Mike Frisch)

In 2001, in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, the Supreme Court rejected the catalyst theory for recovery of attorneys' fees in civil rights enforcement actions. In doing so, the Court dismissed concerns that plaintiffs with meritorious but expensive claims would be discouraged from bringing suit, finding these concerns “entirely speculative and unsupported by any empirical evidence.”

This article presents original data from a national survey of more than 200 public interest organizations that call into question the Court's empirical assumptions. These data indicate that organizations that take on paradigmatic public interest cases, such as class actions seeking injunctive relief against government actors, are the most likely to be negatively affected by Buckhannon. In addition, our respondents report that Buckhannon encourages “strategic capitulation,” makes settlement more difficult, and discourages attorneys from representing civil rights plaintiffs. We argue that these far reaching effects herald a shift away from private rights enforcement and toward more government power, both to resist rights claims and to control the meaning of civil rights.

That is the premise (and generational-divide explanation) noted and discussed by Nicole Black at Sui Generishere, based in part on an article from California Lawyer. Whether the premises are true (and true nationally)--that women are way-disproportionately leaving biglaw practice, and this is especially true with Gen X and Gen Y subjects--is something on which Bill Henderson at ELS blog is more equipped to comment, with all his law-firm data and empirical-crunching talents. But it does seem true to almost any casual observer like me with interest in the demographics of the legal profession that the generational divide Nicole spots is really there, and that women have higher turnover rates at biglaw. Now I just wonder if it is empirically true.

I get inevitable and immediate titters from civilians when they hear that I teach "legal ethics." Not sure I can blame them after that last story Jeff posted, forwarded from Peter Henning, or of course the one on the guy who only got a brief suspension for microwaving Max. But usually the person tittering about my course's name is himself or herself in a profession for which my oxymoronic or ironic comeback is easy, like journalistic research, waiting room patients, postal worker, stock broker, contract binder, professional musician, managing partner, radio talent, Help Desk, business school, sushi chef, I.T., golf announcer, social scientist, family planning, abnormal psychologist, or Academic Dean.

Along the same lines, I once read an ad in the Berkeley school newspaper: "Procrastination Workshop: Pre-registration Required." And I noticed last year, while in the GW "emergency waiting room" (itself ironic), fortunately for me not because of acute angina, that the doctors now uniformly pronounce it AN-gin-uh. After I figured out they meant angina, I realized the world's doctors got together one day and voted to relocate the accent mark--absolutely to end once and for all their own titter factor. The tactic likely works 99% of the time. In my case, and I do promise to grow up someday, it just put me on a five-second delay before my mind moved the accent back and they caught me tittering anyway.

Law also provides one of the language's few single-word oxymorons: Brief.

There's been a lot of turnover, particularly in the second five since the last time I posted. I've just downloaded Differentiating Gatekeepers by Arthur Laby (Rutgers-Camden, right), because it looks
like it may be relevant both to my inquiry into the differences between lawyer-like methods of rule-following versus the orientation to rule-following we might find in an entrepreneur, as well as to my previous work on lawyers as rationalizers. Professor Laby's abstract follows the break.

And here are the top ten papers in the SSRN Legal Ethics & Professional Responsibility Journal as measured by downloads in the last sixty days.

10 The Changing Social Role of Urban Law SchoolsJoyce Sterling, Ronit Dinovitzer, Bryant G. Garth, Bryant G. Garth, University of Denver - Sturm College of Law, University of Toronto, American Bar Foundation, Southwestern Law School